On a recent article written on the 5th of February by Dr. Ben Köhler and appeared on Conflictoflaws.net , the Author addresses the issue of the CISG applicability to the AstraZeneca Advance Purchase Agreement (“APA”), concluded between the EU Commission and the pharmaceutical company for the supply of the COVID-19 Vaccine. The article is highly recommended as it sheds light on an underestimated aspect of one of the recent history’s most important contracts.
First, the Author points out that art. 18.5 APA provides for the exclusive jurisdiction of the Belgian courts. Belgium is a Contracting State to the CISG. Therefore, art. 1 (1) (a) CISG bounds its Courts to apply the CISG.
Second, the CISG is applicable both to private parties’ contracts and to public law entities as far as they act iure gestionis.
The tough question is whether the APA can be considered a contract for the sale of goods under artt. 1 and 3 CISG. One could argue that the buyers’ involvement in the manifacturing process is substantial; moreover, it must be assessed whether the obligation to deliber vaccines is the preponderant part of the obligations. Last, the denomination of the contract could lead to qualify it only as an “advance agreement”. However, the APA obliges to produce and deliver vaccines and to acquire them. The Auther concludes for the CISG applicability.
Fourthly, art. 1 (1) (a) CISG requires the parties to a contract to have their places of business in different contracting states. The EU Commission, acting on behalf of the Member States, has its place of business in Belgium, which is part to the CISG. But some of the 27 EU Member States are not contracting States. However, under the doctrine of multiparty contracts it is sufficient that one party of either side have its place of business in a contracting State. The Author disagrees with this doctrine, but he still deems that the APA falls under the CISG’s scope.
Last, an analysis of the publicly available contract suggests that the Parties did not excluded the CISG.
Dr. Köhler then shows two consequences of the CISG applicability concerning the interpretation of the contract and the allocation of vaccines amongst several buyers in cases of supply’s shortage.
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